CASE NO CCT 31/01 In the matter between
ELLEN JORDAN First Appellant
LOUISA JOHANNA FRANCINA BROODRYK Second Appellant
CHRISTINE LOUISE JACOBS Third Appellant
and
THE STATE Respondent
ANDREW LIONEL PHILLIPS Amicus Curiae
HEADS OF ARGUMENT OF AMICUS CURIAE
TABLE OF CONTENTS
INTRODUCTION ... 3
THE INTERIM CONSTITUTION GOVERNS THIS CASE... 4
THE FINAL CONSTITUTION SHOULD NOT BE CONSIDERED IN THESE PROCEEDINGS... 6
The Relevant Differences between Interim and Final Constitutions ... 6
Issues under the Final Constitution do not arise in the Appeal and Confirmation Proceedings ... 7
The Zantsi Principle... 8
This Court Should not Sit as Court of First and Last Instance... 10
CONCLUSIONS... 11
INTRODUCTION
1 The principal parties appear to have assumed that the appeal and confirmation proceedings are to be governed by the final Constitution:
1.1 The heads of argument of the appellants refer only to provisions of the final Constitution, and
1.2 The State makes the following submission
“It is not clear whether the appellants’ attack on the
prohibitions should be judged under the interim or the final constitution. It appears that the offences of which they were accused, may have been committed during the currency of the interim constitution. The judgment of the court below and the appellants’ submissions in this court are however based on the final constitution. We will do likewise because the differences between the two constitutions do not appear to be material to the outcome of these proceedings.”1
2 The amicus submits that these proceedings are governed not by the final Constitution but by the interim Constitution. He has been admitted to these proceedings to address written and oral argument on this narrow point.
1 Heads of argument of the State p 3 para 4.
THE INTERIM CONSTITUTION GOVERNS THIS CASE
3 The appeal and confirmation hearings in the present matter arise out of criminal proceedings relating to offences in terms of the Sexual Offences Act 23 of 1957 (“the Act”). The offences in question were allegedly committed on 20 August 1996.2
4 The constitutionality of the Act was raised in the criminal proceedings, not in the abstract, but as a defence to the charges faced by the appellants.
The constitutional questions in the present appeal and confirmation hearings are therefore relevant only to the extent that they affect the lawfulness of the conduct with which the appellants have been charged in their criminal case.
2 Charge sheets Record vol 1 pp 11 and 12. Plea explanation of
Jordaan Record vol 1 p 26 para 8 to p 28 para 10. Plea explanation of Broodryk Record vol 1 p 31 para 8 to p 33 para 9. Plea explanation of Jacobs Record vol 1 p 37 para 5 to p 38 para 6.
5 The lawfulness of conduct is determined by the law in force at the time that the conduct was committed.3 Accordingly, the only constitutional issue in the present matter is whether the relevant provisions of the Act (“the challenged provisions”) were valid or invalid on 20 August 1996.
3 Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC), Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC), Tsotetsi v Mutual & Federal Insurance Co Ltd 1997 (1) SA 585 (CC).
6 The constitutional validity of the Act on 20 August 1996 has to be determined with reference to the interim Constitution which was the
constitution in force on that date. Indeed, it is clear from the papers in the case that the only constitutional issues raised by the three appellants before the Magistrates Court and the Transvaal Provincial Division were issues under the interim Constitution. The plea explanations of the three appellants4 and their notice of appeal to the Transvaal Provincial Division5 all refer exclusively to provisions of the interim Constitution. So to does their notice of motion seeking a referral of the issue of the constitutional validity of the challenged provisions from the Transvaal Provincial Division to this Court.6
4 Plea explanation of Jordaan Record vol 1 p 26 para 8 to p 28 para 10.
Plea explanation of Broodryk Record vol 1 p 31 para 8 to p 33 para 9.
Plea explanation of Jacobs Record vol 1 p 37 para 5 to p 38 para 6.
5 Notice of Appeal Record vol 1 p 42 paras 1.1 to 1.6.
6 Notice of Motion Record vol 1 p 50 para 1.1 to p 51 para 1.3.
7 Quite apart from the pleadings in the case, the final Constitution could not apply to the present case because it does not apply retroactively to
invalidate legislation on a date before it came into existence.7
7 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at paras 110 and 113.
THE FINAL CONSTITUTION SHOULD NOT BE CONSIDERED IN THESE PROCEEDINGS
The Relevant Differences between Interim and Final Constitutions
8 There are material differences between the provisions of the interim Constitution and those the final Constitution relevant to the issues raised in the present proceedings. For example
8.1 Several final Constitution rights that may affect the constitutionality of the challenged provisions of the Act are not expressly protected by the interim Constitution:
8.1.1 the right under section 9(1) of the final Constitution to be protected from unfair discrimination on grounds of marital status (this right is relevant to the defined concept of
“unlawful carnal intercourse”, a concept which lies at the heart of the Act),
8.1.2 the right under section 12(2)(b) of the final Constitution to control over one’s own body, and
8.1.3 the right under section 12(1)(c) of the final Constitution to be free from all forms of violence from either public or private sources.
8.2 Section 22 of the final Constitution which protects free choice of trade, occupation and profession, is materially different to its
predecessor, section 26 of the interim Constitution, which protected freedom of economic activity.
9 It is therefore possible that the challenged provisions of the Act may be found to be consistent with the interim Constitution but inconsistent with the final Constitution. Presumably with a view to such a possibility, the parties invite this Court to assess the consistency of the challenged
provisions against the final Constitution. This invitation should be rejected.
Issues under the Final Constitution do not arise in the Appeal and Confirmation Proceedings
10 The invitation of the parties to consider the constitutionality of the challenged provisions in terms of the final Constitution cannot be accepted within the context of the present appeal or confirmation proceedings. This is because, as we have pointed out above, the consistency of the challenged provisions with the final Constitution was not, in fact, an issue before the the Magistrates Court or the Transvaal Provincial Division. If questions under the final Constitution were not properly in issue in the trial proceedings, they cannot be raised as an issue on appeal or confirmation.8
11 Moreover, as is set out more fully below, there are compelling grounds of constitutional adjudicational policy which militate against any decision in these proceedings on the constitutional validity of the challenged
provisions of the Act under the interim Constitution.
The Zantsi Principle
8 Hoffmann v South African Airways 2001 (1) SA 1 (CC) at para 19
12 In S v Mhlungu9 Kentridge AJ quoted with approval the following rule of US Constitutional Law:
“(N)ever . . . anticipate a question of constitutional law in advance of the necessity of deciding it; . . . never . . . formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
13 In Zantsi’s case10 Chaskalson P commented on this rule as follows:
9 S v Mhlungu 1995 (3) SA 867 (CC) at para 59.
10 Zantsi v Council of State, Ciskei, and Others 1995 (4) SA 615 (CC) at para 2.
“This rule allows the law to develop incrementally. In view of the far-reaching implications attaching to constitutional decisions, it is a rule which should ordinarily be adhered to by this and all other South African Courts before whom constitutional issues are raised.”
14 In the National Coalition case this Court spoke of “the general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”11
11 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at para 21.
15 As has been pointed out above, the consistency of the challenged
provisions with the final Constitution is irrelevant to the issues in the case before this Court. To pronounce on the constitutionality of the challenged provisions under the final Constitution would therefore fly in the face of the Zantsi principle which is now an entrenched rule of South African
constitutional adjudication.12 Moreover, this is a case where the Zantsi principle has added force because the “new” provisions of the final Constitution potentially relevant to the challenged provisions and listed above are not provisions which have hitherto received much consideration in the existing body of South African case law. The incremental
development of our Constitutional law would accordingly be compromised if this Court was obliged to pronounce definitively on provisions like
section 12(1)(c) and 12(2)(b) of the final Constitution in the present case.
This Court Should not Sit as Court of First and Last Instance
16 There is an additional compelling reason for this Court not to consider the consistency of the challenged provisions with the final Constitution in this case. This Court has repeatedly emphasised that it is undesirable for it to
12 In addition to the Zantsi and National Coalition decisions see Minister of Education v Harris 2001 (4) SA 1297 (CC) at para 19; S v Mhlungu and Others 1995 (3) SA 867 (CC) at para 59; Ferreira v Levin NO and Others 1996 (1) SA 984 (CC) at para 199 and S v Bequinot 1997 (2) SA 887 (CC).
sit as court of first and last instance.13 In Bruce v Fleecytex Chaskalson P explained:
“Experience shows that decisions are more likely to be correct if more than one court has been required to consider the issues raised. In such circumstances the losing party has an opportunity of challenging the reasoning on which the first judgment is based, and of reconsidering and refining arguments previously raised in the light of such judgment.”14
13 Dormehl v Minister of Justice and Others 2000 (2) SA 987 (CC), Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC), Christian Education South Africa v Minister of Education 1999 (2) SA 83 (CC), Lane and Fey NNO v Dabelstein and Others 2001 (2) SA 1187 (CC).
14 Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC).
17 The judgment of the court below has a narrow ambit relative to the
arguments now raised by the parties and the amici before this Court. The record before this Court is one which has grown considerably subsequent
to the hearing in the Transvaal Provincial Division. So in many material respects, this Court will be sitting as a court of first and last instance at the appeal and confirmation hearing. The undesirability of this state of affairs cannot be avoided in respect of the inquiry into the consistency of the challenged provisions with the interim Constitution. This Court cannot decline to exercise its confirmation jurisdiction in the interests of the incremental development of the law. There is, however, no need for the incremental development of the law to be compromised further by an academic pronouncement on the constitutionality of the challenged provisions under the final Constitution in a case where this Court sits, to a large degree, as Court of first and last instance.
CONCLUSIONS
18 The submissions of the amicus may be summarised as follows:
18.1 For the purposes of the criminal proceedings against the
appellants, the constitutional validity of the challenged provisions of the Act is relevant only as at 20 August 1996, the date of the
conduct in respect of which the appellants are charged.
18.2 The constitutional validity of the challenged provisions on 20 August 1996 must be determined with reference to the interim Constitution which was the Constitution in force on that date.
18.3 The final Constitution is accordingly irrelevant to the constitutional issues in the proceedings before this Court.
18.4 In these circumstances, to consider the constitutionality of the challenged provisions under the final Constitution in these proceedings would violate “the general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
18.5 It would also unnecessarily compound the difficulties caused by the expansion of this case after the hearing in the Transvaal Provincial Division, expansion which, to a material degree, leaves this Court sitting as Court of first and last instance.
MATTHEW CHASKALSON Chambers
Johannesburg 22 February 2002
TABLE OF AUTHORITIES
Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC)
Christian Education South Africa v Minister of Education 1999 (2) SA 83 (CC) Dormehl v Minister of Justice and Others 2000 (2) SA 987 (CC)
Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC)
Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC)
Ferreira v Levin NO and Others 1996 (1) SA 984 (CC) Hoffmann v South African Airways 2001 (1) SA 1 (CC)
Key v Attorney-General, Cape Provincial Division, and Another 1996 (4) SA 187 (CC)
Lane and Fey NNO v Dabelstein and Others 2001 (2) SA 1187 (CC) Minister of Education v Harris 2001 (4) SA 1297 (CC)
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC)
S v Bequinot 1997 (2) SA 887 (CC) S v Mhlungu 1995 (3) SA 867 (CC)
Tsotetsi v Mutual & Federal Insurance Co Ltd 1997 (1) SA 585 (CC)
Zantsi v Council of State, Ciskei, and Others 1995 (4) SA 615 (CC)
